Berl Falbaum
Former Republican vice presidential candidate Sarah Palin recently lost her libel defamation lawsuit against The New York Times when both the judge and jury ruled she did not meet the standard required by a landmark 1964 Supreme Court decision.
Even before the jury completed its deliberations, U.S. District Court Judge Jed Rakoff said he would dismiss the case regardless of the jury’s decision because Palin did not prove, as required by the 1964 ruling that The Times acted with “actual malice.”
Actual malice required that Palin prove the paper knew that what it published was false or that it acted recklessly. The jury came to the same conclusion, holding that she failed to do so.
The 1964 ruling in New York Times v. Sullivan requiring a showing of “actual malice’ applied to public officials and public figures. The two standards are almost impossible to prove.
Putting aside the merits of Palin’s case (frankly, I believe they were frivolous), this gives us the opportunity to analyze the 1964 decision and let’s try to do that somewhat objectively, which, I agree, isn’t easy because it pits a highly controversial conservative politician against The New York Times, arguably one of the most powerful liberal media voices in the country.
First, the case.
In 2017, a deranged man went on a shooting rampage on a baseball field in Alexandria, Va., and wounded Republican Congressman Stephen J. Scalise among others.
The Times’ editorial page editor, James Bennett, working on an editorial citing the 2011 shooting of Democratic Representative Gabrielle Dee Giffords, inserted a sentence which implied that political literature from Palin’s PAC which included what appeared to be cross-hairs over Giffords’ district, might have prompted the violence.
The headline read, “America’s Lethal Politics,” and asked whether the Virginia shooting was reflective of the viciousness in our politics. It also contained the following sentence, “The link to political incitement was clear.” The Times acknowledged the error in a correction within a day, claiming an honest mistake, while Palin maintained that The Times and Bennett had political motivations to smear her.
(Yes, this is the same Bennett who had to resign from The Times in mid-2020 after he approved the publication of a controversial op-ed piece by Arkansas Republican Senator Tom Cotton.)
The media hailed the 1964 decision as a victory for freedom of the press, and since the ruling few public officials or public figures have been successful in attempts to hold editors and reporters accountable.
I was a general assignment reporter for The Detroit News at the time and was one of the few in the newsroom critical of the decision. The only other critic I remember was Will Muller, a political columnist, and I will never forget his column on this subject in which he held that truth should be the only “armor” — his word — in defending against charges of defamation.
I agreed completely because I felt that the court, in effect, gave the media a license to be erratic, irresponsible, and, yes, even defamatory. Stated another way, the court approved publishing defamatory material as long as it was not done purposely or recklessly. It is impossible to defend such a position.
Here is the major problem: Complaints about derogatory news coverage always revolve around the damage done to the reputations of those in the news.
But there is an equally important, if not even more important dimension to this discussion and that is the right of the public to receive factual and unbiased news because all of us — yes, all of us — make our decisions on public officials, public figures and policies, on the news we consume.
We expect accurate information and we should not have to care whether the news was published recklessly or written by reporters with hangovers, still drunk, ill from the flu, or just lazy. (I worked alongside many reporters who, shall we say, played loose with the facts).
None of us has direct communication lines to all the parties in news stories, and there is no way for us, individually, to check the accuracy of the information we receive.
The supporters argued then and do so now that anything short of New York Times v. Sullivan would have a “chilling” effect on news coverage. It would make the media more reluctant to publish pieces which they believe might prompt costly legal action against them.
True, but if they were confident that what they published was true, they would have little, if anything, to worry about. Truth, after all, is an absolute legal defense against libel/slander cases.
The ruling’s defenders also hold that news organizations do publish corrections — as Bennett did — when they recognize their mistakes.
Also true, but a one or two paragraph correction in the inside pages hardly mitigates the potential damage done by a defamatory news story. I cannot envision a scene in which a reader of a newspaper comes across a correction and then recognizes that he/she had to change their mind about a decision they had reached on the respective subject.
What’s more, wire services, for instance, which might have distributed the offending piece do not feel compelled to run corrections since they were not the originators of the news story in question, and the broadcast media, well, try getting their attention on any story that contains inaccuracies.
The media are a vital part of a democracy. News organizations must not act in any manner that delegitimizes their credibility, but the Supreme Court case gave them the constitutional right to do so.
Throughout the six decades I have spent in the media — including teaching constitutional law of the press in the journalism department at Wayne State University — I have always been saddened that in almost every public opinion poll taken through the years, the media are always considered among the least trustworthy of our institutions.
Those who support New York Times v. Sullivan might reflect on that. Perhaps if the media dedicated themselves to defending their work by only considering the truth of what they produce, public opinion might well change.
It is impossible to argue that anyone has a right to offer the public inaccurate or defamatory material, not when one considers the stakes involved.
If a change brings a “chilling effect,” then let’s begin to chill out.
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Berl Falbaum is a veteran West Bloomfield author/journalist, and is the author of 11 books.
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